Water Use in BC: Recurrent Short-Term Water use Approvals are Lawful
Under the Water Act, the ownership of all water in British Columbia, as well as the right to use it, is vested in the Crown. The government, through various agencies, may issue licences or short-term approvals to use water. In this case, the narrow issue was the Commission’s practice of issuing recurring short-term approvals. However, because the Ministry of Forests, Lands and Natural Resources Operations (FLNRO) employs a similar practice of issuing short-term approvals to various users (land or mine owners, municipalities, water users’ communities, federal and provincial ministries, and so on), the case has implications that go beyond the oil and gas industry.
As set out by the Court:
Similarly, pursuant to section 8(1) of the Oil and Gas Activities Act, the Commission has the authority to grant short-term approvals of no more than 24 months to oil and gas operators for the use or diversion of surface water sources in relation to “oil and gas activities”. In this case, the Commission had issued a number of short-term approvals to Encana in relation to the exploratory stages of its oil and gas plays in northeast British Columbia. Encana said that at the exploratory phase its water use would be of a short-term nature, and that its water use would change as its operations change throughout the life cycle of its operations, such that it may acquire a more permanent water use licence at more mature stages of the play.
The crux of the Petitioners’ argument was stated as follows:
Accordingly, the issue before the Court was whether the Commission has the power to grant section 8 approvals that extend for more than one term or more than 24 months.
The Court approached the issue by setting out the process that the Commission and FLNRO follow in granting an approval in any given case:
After conducting an extensive analysis of whether the Petitioners had standing to bring the case (they did) and the applicable standard of review (reasonableness), the Court dismissed the Petitioners’ argument by stating:
The Court went on to say that there is no basis in either the Act itself or from a public policy perspective to prevent someone who had previously received an approval from re-applying for the same or similar permission – the situation would be no different if a third party came along and applied for the same or similar approval. In either case, FLNRO or the Commission would have the statutory authority to consider the application and make a decision based on the present information before it.
The case provides clarity and reassurance to all those relying on short-term water approvals issued under section 8 of the Water Act and reassures regulators such as FLNRO or the Commission that the practice they have been following is a sound one. It is important to keep in mind though, as previously noted, that the Water Act is soon to be overtaken by the Water Sustainability Act, which expressly provides that approvals for both water and ground water may be recurrent. In the meantime, however, those seeking recurrent approvals under the existing Water Act are reminded that the Court was very clear that a recurrent approval is considered to be a new application and subject to the same application process as a new approval – meaning that existing approval holders will not be “grandfathered” or favoured in respect of an application for a recurrent renewal.
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